| Werner v Kaleida Health |
| 2012 NY Slip Op 04866 [96 AD3d 1569] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| Mary Ann Werner, Respondent, v Kaleida Health,Appellant. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (Scott M. Schwartz of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredFebruary 14, 2011 in a personal injury action. The order denied defendant's motion for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when she tripped and fell while walking down a corridor in Buffalo General Hospital,which was owned and operated by defendant. Following discovery, defendant moved forsummary judgment dismissing the complaint on the grounds that the alleged defect was not adangerous condition as a matter of law, and that defendant did not create the condition or haveactual or constructive notice of it. We agree with defendant that Supreme Court erred in denyingthe motion. In support of the motion, defendant submitted evidence establishing that theallegedly dangerous condition was no more than a "nickel size" indentation in the linoleum-tiledcorridor, and that plaintiff was wearing sandals with no backing and one- or two-inch heels.
As plaintiff correctly notes, "whether a dangerous or defective condition exists on theproperty of another so as to create liability depends on the peculiar facts and circumstances ofeach case and is generally a question of fact for the jury" (Trincere v County of Suffolk,90 NY2d 976, 977 [1997] [internal quotation marks omitted]). Nevertheless, where an allegeddefect is shown to be "trivial as a matter of law," summary judgment is appropriate (Sokolovskaya v Zemnovitsch, 89AD3d 918, 918 [2011]; see generally Trincere, 90 NY2d at 977-978). Here,defendant's submissions established that, in light of "the width, depth, elevation, irregularity andappearance of the defect along with the 'time, place and circumstance' of the injury"(Trincere, 90 NY2d at 978), the defect was trivial as a matter of law, and in responseplaintiff failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman vCity of New York, 49 NY2d 557 [1980]). In light of our decision, we need not addressdefendant's contentions that it did not create the dangerous condition and lacked constructivenotice of its existence. Present—Scudder, P.J., Smith, Centra, Lindley and Martoche, JJ.